Publication

Rights of the Child

The chapter is prepared by Mariia Yasenovska on the behalf of the Coalition for the Rights of the Child in Ukraine.

 

The review of policy and legislative initiatives

Rights of the child situation did not significantly improve in 2015: the national legislation still does not comply with the provisions of the United Nations Convention on the Rights of the Child; recommendations of the UN Committee on the Rights of the Child (2011) are executed as a mere formality. Detailed description is given in the spotlight presentation of the Coalition for the Rights of the Child in Ukraine – “Observance of rights of the child in Ukraine in 2012-2015”.[1]

As it was often mentioned by the Coalition for the Rights of the Child in Ukraine and other organizations, state institutions adhere to an object oriented approach whereas a child is considered as an object of influence and protection and not as a subject of legal relations. Another global drawback is dispersion of functions between state authorities and absence of algorithms of their cooperation instead of integrated systematic approach. New regulations have declamatory nature and have neither legal nor financial mechanisms of their implementation.

Thus, the Plan of Measures to execute the National Action Plan for Implementation of the United Nations Convention on the Rights of the Child for 2015[2] that is the policy paper in the sphere of rights of the child protection was adopted by the Cabinet of Ministers of Ukraine only on August 26, 2015 (in 2014, the plan was approved in November because of extraordinary circumstances in the state; and in 2013, such plan was adopted in March).

However, we should mention some positive tendencies. The national legislation on the rights of the child almost stopped its development after 2010, but since the beginning of 2015 regulations on preventing negative consequences of the current events have been brought up to date. Children who need additional social protection are monitored to a greater extent in case of moving beyond the territory of Ukraine; offices and agencies of children’s services are now focused on performing preventive services for children in families in difficult life circumstances.

During 2015 the basic regulations were amended regarding the benefits for children’s education; we have begun the process of amending the legal framework concerning strengthening control over adopted children and families who adopted them, and their moving beyond the territory of Ukraine; we have provided a system for storage and exchange of information about children who may be adopted in case of change of the place of their living; more attention is paid to material security of children. The Ministry of Social Policy has created a working group on developing a draft Law of Ukraine concerning implementation of the United Nations Convention on the Rights of the Child.

Unfortunately, these legislative improvements are only an attempt to solve the most urgent issues. Some of the rights of the child provided by the United Nations Convention on the Rights of the Child and other international acts are not reflected in the national legislation. Thus, at the beginning of 2015, the draft law on amending the Criminal Code of Ukraine regarding the issues of children protection from sexual abuse and sexual exploitation was submitted for consideration; but in December, 2015, its status was still “being processed by the committee”. The draft law on amendments to some legislations of Ukraine concerning criminal responsibility for recruiting, involving and (or) drawing of children into military conflicts or operations has the same status.

 

Children that have suffered from the armed conflict in the East of Ukraine and the annexation of Crimea

The situation in the East of the state has appeared to be the universal indicator of gaps in the legislation and practice of its implementation to ensure the rights and freedoms of children. For example, public and international organizations are constantly recording violations of the legislation regarding observance of the rights of children in specialized residential care facilities, registration of children as IDPs, procedure of receiving targeted aid by IDP children, implementation of the right to education and medical aid.

Since March 2014 at least 109 children have been injured and 42 have been killed as a consequence of explosives that remained in Donetsk and Luhansk regions after military operations. As of the end of March 2015 the Emergency Service Department of Ukraine destroyed 33717 explosive objects in Donetsk and Luhansk regions eliminating from 21 to 36 explosive munitions per day.[3]

We should mention that the extraordinary majority of legislative changes in 2015 concerns children who have been displaced from the temporarily occupied territory and the ATO area. Control over observance of the rights of children belonging to vulnerable categories has been strengthened – these are the children arriving from the occupied territories and the ATO area without accompaniment of legal guardians (detection of such children, recording the fact of presence of such children, registration, collection and processing of information on communication with legal guardians and other close relatives), procedure of receiving IDP status by children, and also the status of the child deprived of parental care, material security, benefits for accommodation in dormitories, education, rest, rehabilitation, etc. Draft laws on amending the procedure of registration of IDP children and simplification of the procedure of registration of childbirth are being considered; the initiative on the change of terms for filing documents to receive government aid for childbirth was submitted for consideration. However, too slow process of amending the legislation does not correspond to the dictates of the times in general.

The issues of proper registration of birth and citizenship, ensuring free movement of children who are staying in the ATO area or on the territories beyond the control are remaining unsolved.

The evacuation procedure is also missing that was illustrated during the escalation of the military operation in the region of Debaltsevo in winter 2015. If more than 1600 children were evacuated from the institutions located in the ATO area as of October 2014, then the Children’s Department of Rovenky Regional Residential Care Facility for People with Disabilities (27 children) and Krasnodon Regional Residential Care Facility in Luhansk region (80 children) were still not evacuated as of July 2015.[4]

Suddenly, there are new problems for Ukraine concerning children-combatants who have the experience of use of weapons and participation in armed conflict. The national legislation does not provide criminal responsibility for such actions, and the corresponding draft law is still under consideration as it was mentioned above. A barrier to bringing to responsibility of people guilty in involving children in armed conflict is also deceleration of ratification by Ukraine of the Rome Statute of the International Criminal Court that includes provisions for recognition of illegal actions regarding children during the course of military conflicts as crime.

 

Right for upbringing in the family

At the beginning of 2015 more than 83 000 children-orphans and children deprived of parental care were in Ukraine. These children need special attention from the state, in particular in observance of their right for upbringing in the family.

Despite the economic crisis and armed conflict that is a great challenge to many Ukrainian families, the State Target Social Program of Family Support 2016 in general provides conducting informational and festive events and is not focused on comprehensive solution of family problems. Implementation of the system of foster families is remaining at the stage of draft laws although it might protect children from institutionalization, first and foremost the children from among internally displaced persons.

 

Freedom from abusive treatment

The problem of preventing abusive treatment of children is still unsolved. The current legislative standards are obviously insufficient and practice of their implementation has to be improved. Physical punishment is still a frequent measure in families and in state institutions as well.

Abusive treatment of children is still a permanent event in penal institutions in the absence of juvenile justice.

The system of criminal justice has been developed since 2012 but unfortunately it significantly limits the principles, functions and aims of juvenile justice. There is no relevant information campaign to explain the conceptual framework of juvenile justice, its task and functions in the state. The authority responsible for juvenile justice administration has not been formed yet what leads to inconsistency in activities of the key subjects of juvenile justice (this is evidenced by nonperformance of the action plan to implement the Concept of criminal justice development), state funding of the program of its development is missing as well. The key activity in this sphere is carried by institutions of civil society.

The positive point is reduction of the number of juvenile correctional facilities and other specialized institutions for detention of juvenile offenders. However, this fact does not mean the total reduction of level of child criminality. Creating of rehabilitation and correctional centers in particular day-care and probation centers is not discussed at all due to system crisis of the social sphere.

The Law of Ukraine “On probation” adopted on February 5, 2015 has two substantial threats in the sphere of its implementation despite its positive potential:

– there is no “personnel of probation organization”. These functions have to be temporarily performed by criminal executive inspection that could not be compared to qualified probation inspectors. There are no programs to prepare “personnel of probation organization”;

– there are neither “probation programs” nor social and educational programs provided by the Law.

 

Children with disabilities

The number of children with disabilities in Ukraine increased to 20 000 people in last 15 years and now it amounts to almost 170 000.

Access to education is also problematic for children with disabilities. There are near 2 thousands of preschool educational institutions of compensatory (sanatory and specialized) and combined type where children receive correctional and rehabilitation assistance during preschool education. It should be noted that preschool groups of special purpose (of compensatory type) are almost absent and access to preschool education is not adequate in rural localities. According to the data of research of the state of Ukrainian inclusive education only 11% of schools are partially adapted for studying of pupils with disabilities. They correspond to standards of safety and free movement even to a lesser extent, there are no folding ramps, elevators, specialized hygienic rooms, appropriate doors, furniture and lighting.[5]

 

Children among internally displaced persons

According to the data of the Envoy of the President of Ukraine on peaceful settlement of the situation in Donetsk and Luhansk regions Iryna Herashchenko more than 60% of displaced persons from the conflict area are women and children. Only in Debaltsevo whence people were evacuated after January 28, 2015, 1908 children were among the 10 000 evacuated persons. The Commissioner of the President of Ukraine for Children’s Rights M. Kuleba informed that more than 65 children have been killed and 127 have been injured during the whole time of the military conflict in Donetsk and Luhansk regions.

Continuous support of displaced persons may have negative impact on the attitude of the host community when they are offered places in children’s preschool institutions free of turn or are excused from financial participation in the life of a class. Thus, as of February 5, 2015, 12 000 children are already in e-queuing system in Kharkiv, and 6 000 are registered for 2016. Children of displaced persons are registered in kindergartens without e-queuing system by way of exception. 900 such children were registered in kindergartens of Kharkiv as of September 1, 2014 and 1200 ones were there as of February 2015.

 

Conclusions and recommendations

  1. Taking into account the fact that the child has not become a subject that has the right at the legislative level, respect to human dignity of the child and his legal personality should be reflected in national legal approaches and policies.
  2. It is necessary to create a comprehensive program focused at solving national programs on observance of rights of children that have suffered from the armed conflicts and IDP children that would cover all categories of children and admit no exceptions. Activities oriented to ensuring children’s rights by the state should obtain the corresponding funding. It is required to adopt specific legislation that would criminalize involving children in armed conflicts.
  3. It is essential to recognize the procedure of childbirth registration at the legislative level that would protect the children’s rights. It is also required to provide the first priority to the cases of establishing the fact of birth; to allow extending the 12-month deadline for filing documents for the state aid considering the circumstances; to simplify the registration procedure of identification documents for representatives of the Romani ethnic group.
  4. It is required to expedite the implementation of the model of juvenile justice taking into account international standards of the child’s best interests in order to protect juvenile offenders and to protect them from tortures and abusive treatment. Any child’s placing in a closed institution shall be executed in exceptional cases only and be considered on a regular basis with a view to necessity and acceptability.
  5. It is recommended to initiate practical solving of the issues of the child’s rights protection in the ATO area and in AR Crimea as a task of universal significance for state institutions together with nongovernment and international organizations.
  6. The process of actual deinstitutionalization has to be intensified, in particular it’s necessary to review the possibility of providing financial support to families in crisis and to develop the system of foster families meanwhile improving the whole system of social services to families with children and developing the system at the level of local communities.
  7. It is required to ensure normative regulation of the issue of protection of the rights and interests of children separated from their families, in particular through providing the status of being deprived of parental care to such children, simplification of the procedure of guardianship establishment and priority placement to the families of relatives and friends of the child.

 

 

[1]  The report “Observance of the rights of the child in Ukraine 2012 – 2015”, the Coalition for the Rights of the Child in Ukraine, 2015 http://komsport.rada.gov.ua/komsport/control/uk/doccatalog/list?currDir=50402

[2] The Law of Ukraine “On National Program “the National Action Plan on Implementation of the United Nations Convention on the Rights of the Child for the period until 2016” http://zakon3.rada.gov.ua/laws/show/1065-17; resolution of the CMU “On approving the plan of measures to implement in 2015 the national program “the National Action Plan on Implementation of the United Nations Convention on the Rights of the Child for the period until the year 2016” No. 881-p – dated 26.08.2015 http://www.kmu.gov.ua/control/uk/cardnpd?docid=2484491764

[3]      From the report “Observance of the rights of the child in Ukraine 2012 – 2015”, the Coalition for the Rights of the Child in Ukraine, 2015 http://komsport.rada.gov.ua/komsport/control/uk/doccatalog/list?currDir=50402

[4]      Ibid.

[5]      From the report “Observance of the rights of the child in Ukraine 2012 – 2015”, the Coalition for the Rights of the Child in Ukraine, 2015 http://komsport.rada.gov.ua/komsport/control/uk/doccatalog/list?currDir=50402

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